Satinder Singh v Transdev Melbourne

[2015] FWC 5395

[2015] FWC 5395

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Satinder Singh
v
Transdev Melbourne
(U2015/7546)

COMMISSIONER BISSETT MELBOURNE, 7 AUGUST 2015

Application for relief from unfair dismissal - s.399A application to dismiss - application not granted.

[1] Mr Satinder Singh has made an application to the Commission pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal. Mr Singh’s employment was terminated by Transdev Melbourne Pty Ltd (Transdev) on 4 May 2015.

[2] Transdev has made an application under s.399A of the Act that the unfair dismissal application be dismissed on the grounds that Mr Singh has unreasonably failed to comply with the directions of the Commission.

[3] This application was sent to Mr Singh but no reply was received from him to it. I have therefore determined the matter based on Transdev’s application.

[4] Following the lodgement of Mr Singh’s application directions (the initial directions) were issued by the Commission for him to file his material with the Commission and serve those on the Respondent by 12 noon on 22 June 2015.

[5] Mr Singh failed to comply with the initial directions and did not seek any variation to them prior to the date for compliance.

[6] As is the common practice in the Commission, the matter was listed for a non-compliance hearing on Monday 13 July 2015. Transdev say, in its application under s.399A, that prior to the non-compliance hearing it was advised by the Commission that Mr Singh had been in touch with the Commission and it was likely he would be granted an extension of time for filing his material. Transdev says it was given no opportunity to make any submissions as to whether such an extension should be granted. Mr Singh’s request for an extension was granted and amended directions were issued on 13 July 2015.

[7] The amended directions required Mr Singh to file his material by 12 noon on 17 July 2015.

[8] Transdev says it did not receive any material from Mr Singh by the required time. However, material received from Mr Singh was sent to Transdev by Commission staff. Transdev says that ‘the email attaching the material filed by the Respondent was forwarded to Mr Felan [of Transdev] at 4:54pm on 17 July 2015. The email from [Mr Singh] to the Fair Work Registry was sent at 2:31pm on 17 July 2015, more than two hours after the time limit setout (sic) in the Amended Directions.’

Conclusion

[9] I have carefully considered the conduct of Mr Singh in not meeting the initial directions of the Commission. Non-compliance is regrettable whenever it occurs and certainly creates some inconvenience for a respondent to an application and to the Commission.

[10] Whilst Transdev do not appear to have been given an opportunity to make submissions with respect to the initial non-compliance the request to grant an extension of time within which to file his material was considered by the Commission and granted to Mr Singh. Clearly the Commissioner considered it reasonable to do so. That Transdev did not have an opportunity to comment prior to the decision to grant the extension being made, while unfortunate, does not deny it of any rights it may have under the Act. Regardless of the Commission amending the directions Transdev was still at liberty to make an application to the Commission to dismiss the application either before or after the extension on proper grounds (as it has done). In this respect I do not consider it was denied procedural fairness.

[11] With respect to the amended directions I am satisfied that Mr Singh did comply in that he filed his submissions with the Commission on 15 July 2015. He did fail to comply with the directions in total as he did not serve his material on Transdev. Despite the submissions of Transdev to the contrary I note that Mr Singh’s material was filed in the Commission at 2:31pm on 15 July 2015 (not 17 July 2015).

[12] There was however material in Mr Singh’s filed documents which he indicated should not be forwarded to Transdev. The administrative staff of the Commission followed this up with Mr Singh and provided the material to Transdev as soon as possible after clarifying the status of those documents.

[13] Mr Singh did fail to comply with the initial directions of the Commission. I am satisfied however that he substantially complied with the amended directions and that the delay in Transdev receiving the material of Mr Singh was the need for the Commission staff to clarify some matters with Mr Singh prior to the material being forwarded to Transdev. Transdev have not been disadvantaged in the preparation of its material in this delay of a few hours in them receiving the material.

[14] Given that Ms Singh did comply with the amended directions I find no grounds to dismiss the application pursuant to s.399A. For these reasons the application is dismissed.

COMMISSIONER

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